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AB-3138 Residential care facilities for the elderly: electronic monitoring.(2019-2020)

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Date Published: 02/21/2020 09:00 PM
AB3138:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 3138


Introduced by Assembly Member Waldron

February 21, 2020


An act to add Section 1569.391 to the Health and Safety Code, relating to care facilities.


LEGISLATIVE COUNSEL'S DIGEST


AB 3138, as introduced, Waldron. Residential care facilities for the elderly: electronic monitoring.
(1) The California Residential Care Facilities for the Elderly Act (act) generally requires the State Department of Social Services to license, inspect, and regulate residential care facilities for the elderly and imposes criminal penalties on a person who violates the act or who willfully or repeatedly violates any rule or regulation adopted under the act. The act enumerates specific rights and liberties for residents that are to be posted inside the facility and personally provided to each resident. These rights include, among others, being granted a reasonable level of personal privacy in accommodations, medical treatment, personal care and assistance, visits, communications, telephone conversations, use of the internet, and meetings of resident and family groups.
This bill would enact the Electronic Monitoring in Residential Care Facilities for the Elderly Act to authorize the use of electronic monitoring either inside a resident’s room by a resident or in certain areas of a facility by the facility under specified conditions. For the use of a personal electronic monitoring device inside a resident’s room by a resident, the bill would require, among other things, the resident or the resident’s responsible party, as defined, to provide the facility with a completed notification form, created by the department, that includes the consent of the resident’s roommate, if any. The bill would also require the resident or the resident’s responsible party to post a sign at the entrance to the resident’s room stating that the room is monitored electronically. For the use of a facility electronic monitoring device by a facility, the bill would require the facility to, among other things, provide written disclosure to the department and each resident or the resident’s responsible party of the electronic monitoring, archive the electronic monitoring digital data for 365 days, and provide the department access to the data upon 24 hours’ notice. By expanding the duties of licensed facilities under the act with regard to authorizing residents and facilities to conduct electronic monitoring under these conditions, the bill would expand an existing crime, thereby imposing a state-mandated local program.
The bill would prohibit a person from knowingly hampering, obstructing, tampering with, or destroying a personal electronic monitoring device or a facility electronic monitoring device or the recordings made therefrom, except as provided. By creating new prohibited conduct under the act, the violation of which is a crime, the bill would expand an existing crime, thereby imposing a state-mandated local program.
(2) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1569.391 is added to the Health and Safety Code, to read:

1569.391.
 (a) This section shall be known, and may be cited, as the “Electronic Monitoring in Residential Care Facilities for the Elderly Act.”
(b) The following definitions shall apply to this section:
(1) “Department” means the State Department of Social Services.
(2) “Electronic monitoring” means the placement and use of a personal electronic monitoring device inside a resident’s room or a facility electronic monitoring device by a facility in accordance with this section.
(3) “Facility electronic monitoring device” means a surveillance instrument or instruments having fixed position video camera or cameras installed in the facility’s public spaces pursuant to the provisions of this section that broadcasts or records live-captured activity to a third party having access to a receiver, a web-based application, or ancillary transmission method projecting images.
(4) “Facility” means a residential care facility for the elderly licensed pursuant to this chapter.
(5) “Personal electronic monitoring device” means an instrument or instruments having fixed position video camera or an audio device, or a combination thereof, that is installed inside a resident’s room pursuant to the provisions of this section and broadcasts or records live-captured sound or activity, or both, occurring in the electronically monitored space to a third party having access to a receiver, a web-based application, or ancillary transmission method.
(6) “Resident” means a person residing in a facility.
(7) “Resident’s responsible party” means a person who has a power of attorney or is a court-appointed conservator of a resident.
(c) A facility shall allow a resident or resident’s responsible party to install a personal electronic monitoring device inside the resident’s room for the purpose of voluntarily conducting electronic monitoring if the requirements of this section are met. A facility shall not evict a resident for installing a personal electronic monitoring device inside a resident’s room if the requirements of this section are met.
(d) (1) If a resident conducts electronic monitoring inside their room, a sign shall be clearly and conspicuously posted at the entrance to resident’s room. The sign shall be printed in black 3/4-inch Helvetica font and state “This room is monitored electronically by or on behalf of the resident.” The sign shall remain posted for as long as the resident uses a personal electronic monitoring device.
(2) The resident or resident’s responsible party is responsible for posting and maintaining the sign.
(e) (1) A resident or resident’s responsible party shall only begin electronic monitoring inside the resident’s room after notifying the facility in writing on a form prescribed by the department. A copy of the completed notification form shall be placed inside the resident’s room and included in the files of resident and each resident’s roommate, if any.
(2) On or before April 1, 2021, the department shall create a notification form that a resident or resident’s responsible party shall use to notify a facility of the commencement of electronic monitoring inside the resident’s room. The form shall include, but not be limited to, all of the following:
(A) The resident’s signed consent to electronic monitoring, or if the resident is legally incapable of consenting, then the resident’s responsible party shall have the person with the legal authority to consent for the resident sign the notification form.
(B) If the resident has a roommate, the signed consent of the resident’s roommate or the person with the legal authority to consent for the roommate.
(C) A description of the type of personal electronic monitoring device to be used.
(D) The installation and usage needs of the personal electronic monitoring device.
(f) (1) A resident using electronic monitoring shall obtain consent from every roommate, if any, before the resident may continue or begin to use electronic monitoring. If a roommate does not consent to electronic monitoring, the resident or resident’s responsible party shall disable the personal electronic monitoring device from any use.
(2) A resident or roommate may withdraw consent from electronic monitoring at any time, and the withdrawal of consent shall be documented in the resident’s record. If a roommate withdraws consent, and the resident wishes to continue electronic monitoring, the facility shall make reasonable attempts to accommodate the resident who wants to continue electronic monitoring. The facility may offer to move either the resident or roommate to another suitable room at the same monthly rate. If a facility is unable to accommodate a resident due to lack of space, the facility shall reevaluate the request every two weeks until the request is fulfilled.
(g) (1) A resident or resident’s responsible party choosing to conduct electronic monitoring shall do so at their own expense, including paying for the purchase, installation, maintenance, data archival, application subscription, and removal costs. All electronic monitoring digital data shall remain the property of the resident. A resident or resident’s responsible party has no obligation to share digital data with any third party, including the facility. A resident or resident’s responsible party shall use a personal electronic monitoring device in compliance with all applicable state and federal laws, including laws relating to recording images and words of nonconsenting parties and privacy.
(2) If a resident or resident’s responsible party chooses to install electronic monitoring that uses internet technology for visual or audio monitoring, that resident is responsible for contracting with an internet service provider, unless internet service is included in the facility’s monthly rental rate.
(3) A facility shall not charge the resident a fee for the cost of electricity used by an electronic monitoring device.
(h) (1) A person shall not knowingly hamper, obstruct, tamper with, or destroy a personal electronic monitoring device installed inside a resident’s room without the permission of the resident or the person who signed the notification form consenting to electronic monitoring.
(2) A person shall not knowingly hamper, obstruct, tamper with, or destroy a video or audio recording obtained from a personal electronic monitoring device without the permission of a resident or the person who signed the notification form consenting to electronic monitoring.
(i) A facility shall only use a facility electronic monitoring device in the following areas of a residential care facility for the elderly:
(1) Entrances and exits, as long as the cameras are focused only on the entrance or exit doorways.
(2) Areas used exclusively by employees, including medication preparation and storage areas or food preparation areas.
(3) Facility lobby, foyer, or similar area used for reception of third parties.
(4) Common indoor areas, including dining areas and leisure activity areas. A restroom or sleeping area shall never be considered a “common area” and shall not be subject to electronic monitoring by a facility under any circumstances.
(5) Outdoor areas, including valet parking lots, delivery areas, gardens, and landscaped grounds.
(j) A facility using a facility electronic monitoring device shall do all of the following:
(1) Ensure that broadcasting or recording of live-captured activity displayed on a screen or other device shall be inaccessible for viewing by the residents or third parties.
(2) Provide written disclosure of the full use of facility electronic monitoring devices to the department and each resident or their resident responsible party.
(3) Archive each 24 hours of electronic monitoring digital data for 365 days before being overwritten or destroyed.
(4) Provide access to the department of archived data upon 24 hours’ notice to the facility’s administrator.
(5) Use a facility electronic monitoring device in compliance with all applicable state and federal laws, including laws relating to recording images and words of nonconsenting parties, and privacy.
(k) (1) A person shall not knowingly hamper, obstruct, tamper with, or destroy a facility electronic monitoring device.
(2) A person shall not knowingly hamper, obstruct, tamper with, or destroy a video or audio recording obtained by a facility electronic monitoring device.

SEC. 2.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.